S (Children) [2007] EWCA Civ 1430

Application by local authority for permission to appeal order allowing a further period of residential assessment for a family subject to a care plan. Application refused.

The extension for assessment was granted after the father unexpectedly joined the family unit at the assessment hospital. As this eventuality had not been envisaged in the agreed, amended care plan, the judge directed that a further twelve week period of assessment should commence. The local authority was resisting this partly on the basis of additional costs involved.

A further complication was that the assessment period would end six weeks prior to the scheduled final hearing and there were no plans as to what should happen during that time as it was felt that there could be no further assessment order under s38(6).

In refusing the application Thorpe LJ reviews the position of the experts involved, who differed on how to achieve a separation if that was the outcome at the final hearing. That consideration, taken with the gap between the assessment and the hearing, led Thorpe LJ to emphasise that the parties should engage in "parallel planning" so that either eventuality is considered before the outcome is decided.

Lord Justice Thorpe:1. The underlying proceedings between the local authority, the parents, and the guardian of the two children (A and B) are extremely complex, and on any view exceptional. They have had the advantage of judicial continuity. HHJ Karsten QC concluded a ten day hearing with an order in March 2007 that directed the family to a 12 week assessment at the Cassell Hospital. The Cassell was to be jointly instructed by the parties, and the costs were to be divided between the parties in proportions recorded in the order. This required the amendment of the care plan upon the basis of which the local authority had gone into the trial. That care plan sought to separate the two children from their parents permanently. Inevitably, if the possibility of maintaining family care for these two children was to be the subject of assessment at the Cassell, the care plan had to be rewritten to recognise alternative eventual options: one, the children to continue to be brought up by their parents; the other, the children to be permanently separated.

2. It was in the contemplation of all the parties that the assessment would commence relatively quickly. That was the first expectation to be disappointed by events, and it was not until 1 August that the family assessment (the assessment of mother and the two children) commenced. In the interim, something to the considerable discredit of the mother emerged. The danger for the mother, and through the mother for these two children, is her attachment to her maternal birth family and particularly her two brothers, who are extremely dangerous. One of them was serving a substantial period of imprisonment during the course of the hearing in March 2007 and following the order made by the judge. By July, disclosure of prison records demonstrated that there had been regular telephone communication between the mother and her brother, in breach of every assurance that she had given to professional people and to the court that there was no continuing communication between them. This unfortunate development was the subject of a professionals meeting called at the end of July, at which Dr Danya Glaser played an important part. Dr Glaser has been the expert who has advised the local authority consistently throughout this difficult case. It was in reaction to her opinion December 2006 that the local authority had formulated its care plan. Her opinion at that stage was that the mother could only be made safe if she had admission to a therapeutic community for a minimum period of twelve months, to be followed by probably ten years of individual psychotherapy. That was the position from which Dr Glaser did not budge at a professionals meeting in February. However, it was during the course of the trial on its fifth day that she gave oral evidence to the judge in which she accepted that a twelve week assessment of the family at The Cassell might be a necessary aid to any final conclusion.

3. So at the professionals meeting at the end of July, what was discussed was the impact of this discreditable disclosure on the plan enshrined in the March order. Obviously there would have been a possibility that the professional consensus was that this was so serious, so damaging to the mother's credit, that the only option was a return to the judge with an application for the abandonment of the management plan contained in the March order. To the credit of the local authority, they decided not to take so radical a step, and they assented to the admission of the mother and two children to the Cassell on 1 August.

4. The second fundamental development that had not been envisaged by anybody when this management plan was incorporated in the March order was that the father join the mother and the two children at the Cassell on, I think, 11 September. So the whole focus of the assessment shifted. No longer were the Cassell assessing mother and two children as a future family of three -- a single parent family -- now they were assessing the future of parents united, and a family of four. So it was perhaps predictable that the brief given to the Cassell on 1 August was not going to be fulfilled at the expiration of the twelve week period. I can absolutely understand the apprehension of any local authority that an acceptance of a twelve week assessment should not, step by step, be enlarged little by little until they find in the end they have had to pay for twelve months, not twelve weeks. So I am not at all surprised that the reaction of the Cassell -- that they required a further period of twelve weeks -- was not a development agreed and incorporated in some consent order. Accordingly, there was another hearing convened before HHJ Karsten, in fact on 9 November, at which he heard submissions from all the parties and evidence from the local authority social worker and from the Cassell hospital.

5. The November hearing was an obvious opportunity for Dr Glaser to testify again. She is a pre eminent expert. She has advised the local authority throughout. She is not allied with The Cassell in the sense that she practises psychoanalytically as well as psychiatrically. She could not be said to have any sort of partiality one way or the other, but unfortunately it was not possible for her to testify. She was appealed to at short notice and she had a commitment to fly abroad. The best that could be done, given that the judge was held up in a criminal trial, was for her to attend at the Principal Registry to answer questions from counsel which would be recorded; and that was done, and we have a record of the many questions which were addressed to her. Of course it is easy to cherry pick from a record of that sort, but if I were to take a single passage which seems to me to come closest to her response to the key question, it is at page 8:

"[Would you support a further three months if that were available?]

With everything else proceeding in terms of parallel planning. With the sure knowledge that support would be there. With the full understanding of the parents that that might not work, yes. All the provisos have to be in place. There has to be true parallel planning".

Perfectly obviously, the witness from the Cassell, Miss Hatto, a psychotherapist, urged that the Cassell should have the additional time to complete their task. Behind Miss Hatto, of course, was the supervision and the opinion of the Director of the hospital, Dr Roger Kennedy.

6. The submissions of Miss Kirby for the local authority were ultimately placed before the judge in writing, and we can see that she urged many considerations upon him arising directly out of the interim history. She drew attention to the fact that even after a concession from the Cassell that they would reduce their fees in one respect, there would still be a £60,000 bill for the local authority. She identified the options, as she saw them, for the court, and she drew attention to the impediment of too ready extensions, or making of assessment orders under Section 38(6). Paragraph 15 of her submission reads:

7. The legal argument as to the application of those cases to the facts of this case have perhaps been considered more profoundly at the March hearing, and have resulted in the judge's conclusion that the order he proposed to make was compliant with the guidance given in those two cases. I think it is important to emphasise that there were some very real differences between this case, as it came before the judge in November 2007, and the situations considered by the House of Lords in those two leading cases. The parents were still parenting their children, albeit subject to supervision order. There was no interim care order in place, and here what was essentially sought was the extension of an assessment that flowed from joint instructions, an extension that was posited on developments that had simply not been contemplated when it was first agreed and ordered. Another very important distinction, I think, is between the legalities and the practicalities. The case for the local authority on 9 March was that despite the fact that the parents were parenting their children and doing reasonably well at the Cassell, making some progress at the Cassell, the children should nonetheless be removed from the parents quickly and (as Miss Kirby has accepted) realistically, permanently. That as an option was simply not to be contemplated, given the very clear expert evidence as to the resultant damage on the children, who were well attached to the parents and who would not be able to comprehend their sudden loss. There was another option which does not seem to have been urged by anyone, which was simply to terminate the assessment so that the parents could return to the community. The Cassell did not favour that. Dr Kennedy regarded it as too risky, but if it were to be contemplated, it was on the basis of a very high level of support which would have involved daily visits from the allocated social worker. And the third option was the one adopted by the judge, which was to sanction the exception. Miss Kirby has said, well, that is all very fair, looking at it pragmatically, but judicial decisions have to be governed by law, and this was simply unlawful in the light of the guidance to be derived from the decision of the House of Lords in Re G.

8. That submission she has developed very skilfully in her skeleton argument and also in her oral submissions, but in my judgment it fails; and I think it is worth just seeing how the judge approached the legal question, remembering that this is an exemplary judgment, and remembering that the thrust of the submissions were more in relation to the facts and the circumstances rather than the law. But the judge dealt with the continuing purpose of assessment between paragraphs 35 and 38 of his judgment. He identified three areas as to which he the court needed information which was then lacking, before he could arrive at a clear conclusion as to the long term future. Number one was whether the mother is able to separate from the maternal family; number two, the question of the father's capacity to protect the children from future contact that the mother might have or which she might be tempted to have with her dangerous brother; and thirdly (part and parcel of the same, it might be said), the nature of the mother's relationship with her brothers.

9. Miss Hatto from the Cassell, in paragraphs 42 to 44 as the judge recorded it, had other aspects in mind. She said that the focus of the assessment had changed when the father arrived, and so far as assessing them as a couple, the Cassell needed some clearer assessment. A further period of assessment would give a clearer view of the direction in which the relationship was going, how they would manage if they were not a couple, and whether one or other of them could cope on his or her own. It seems to me to be a point obviously made, and well made, given the unexpected development of 11 September. She also said that time was needed to assess whether they had the ability to sustain their initial progress. The guardian's position is recorded in paragraph 45 of the judgment. He said that the court needed to know whether it could be safe for the children to remain with the parents. He said that the court did not have the answer to that question. The judge continued:

"That, as it seems to me, is the crux of the issues which the court has to decide today. Does the court have the information which it needs about that matter? The Guardian said, no. He also said that there is scope for change. That seems to be clear. Whether there is scope for sufficient change is unknown. The Cassell will know after they have seen the family for another three months."

10. I add that there was a considerable amount of expert evidence, not just as to the short term event of separation for the children, but also on the issue: if the parents failed, if permanent separation became inevitable, how could it be achieved? Miss Kirby has said that the advice of Dr Glaser had always been that the quicker that would be achieved, the more likely would be success. Now that was not the evidence of Miss Hatto, and the judge recalls in paragraph 46 of his judgment her opinion that A would have to go to a specialist bridging placement for at least a year to make sense of the separation before she could go on to another placement. In that same paragraph the judge seemingly accepted that view, for he said:

"That evidence is obviously very concerning, and it has implications for [B] too, because of the desirability of not separating these two children."

11. I have already expressed my opinion that Miss Kirby's attack on the judgment fails, but I do think that there are considerations that need to be expressed today in relation to preparation for the future, and for the final hearing. It does seem to me that Dr Glaser spoke very wisely when she impressed the need for parallel planning. All professionals in the case have to think about what is going to happen on, I think it is 25 January, when the period of further assessment ordered by the judge expires. Between that date and the fixture in March, there is an interim of about six weeks. I am entirely sympathetic to Miss Kirby's submission that the local authority is not to be, as it were, pushed into a corner, whereby there is simply a pragmatic decision: "Oh, well, they had better stay where they are during that six week interim." The best protection against that sort of pragmatism is for all the professionals to address immediately the question of where the parents and children are to live in the community during that very important six week interim. And then, given that the judge has seemingly accepted the evidence of Miss Hatto that the transition from parental care to adoptive care will involve a twelve month stepping stone placement, it seems to me wise for all the professionals to be considering practical arrangements for the children against the very real possibility that permanent separation will be the judicial decision in March. Of course, it can be said that the judge's implicit acceptance of the evidence of Miss Hatto can only be provisional because he had not heard the contrary view from Dr Glaser, but if there is a difference of view, or if there is potentially a difference of view, it seems to me very important that Dr Glaser and the Cassell hospital discuss that very real hypothesis, that the judicial order in March will be permanent separation; and the question will then immediately arise as to how that is to be accomplished (the full transition from parental care to adoptive care).

12. If that can be discussed and agreed in the interim, the advantages are obvious. It reduces the territory for judicial decision, it reduces the amount of court time that is required for the judge to hear different professional views. Perhaps even more important, if there is a consensus in the interim, then plans can be immediately made. Miss Kirby has said, well, we have already identified a good foster carer, but there is a world of difference between somebody who is good for one week or a one month transition, and somebody who is good for a twelve month transition. The benefits that can be obtained from concurrent planning are hopefully well known to all the professionals in this case. This may not be a conventional concurrent planning situation, but it is certainly capable of concurrent planning management; and I would hope that although the local authority will be disappointed with the outcome of this application, they will see the opportunities for careful consideration of the situations that are likely to face them on and after 25 January next.

13. But for all those reasons, and despite Miss Kirby's veryattractive and spirited submission, I would refuse the application.

Lord Justice Keene:14. I agree. I would only emphasise my concerns about what is to happen when the twelve week assessment ordered by HHJ Karsten on 9 November of this year comes to an end some six weeks or so before the date fixed for the final hearing. Like my Lord, I cannot see that there could be any lawful justification for a further Section 38(6) order beyond that date in late January. It is therefore crucially important that all parties, and especially the local authority, apply their minds to the provision of a package of measures to support these children and their family, pending the 3 March hearing.